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PIL No.19/2011

Page 1 of 64

HIGH COURT OF JAMMU AND KASHMIR

AT JAMMU

IA No. 48/2014 &

CM Nos. 4036, 4065 of 2020

in PIL No.19/2011

(Through Video Conferencing

from Srinagar)

Reserved on: 23.09.2020.

Pronounced on: 09.10.2020

Prof. S. K. Bhalla …Petitioner(s)/Appellant(s)

Through:

Mr. S. S. Ahmed, Advocate.

(On video conferencing from office

at Jammu)

Mr. Ankur Sharma, Advocate in IA

No. 48/2014

(On video conferencing from office

at Jammu)

Mr. Sheikh Faraz Iqbal, Advocate

in CM No. 4036/2020

(On video conferencing from office

at Jammu)

Ms. Meenakshi Salathia, Advocate

in CM No.4065/2020

(On video conferencing from office

at Jammu)

v/s

State of J&K and others …. Respondent(s)

Through: Mr. Raman Sharma, Additional AG

(On video conferencing from

office at Jammu)

Mr. S. S. Nanda, Sr. AAG (On

video conferencing from office at

Jammu)

Mr. Adarsh Sharma, Advocate for

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respondent no.14

(On video conferencing from office

at Jammu)

Mr. Sunil Sethi, Sr. Advocate with

Mr. Ravi Abrol, Advocate

(On video conferencing from office

at Jammu)

CORAM:

HON’BLE THE CHIEF JUSTICE (On Video Conference from residence at Srinagar)

HON’BLE MR. JUSTICE RAJESH BINDAL, JUDGE

(On Video Conference from residence)

ORDER

GITA MITTAL, CJ

IA No. 48/2014

“25. The Public Trust Doctrine primarily rests on the

principle that certain resources like air sea, waters and the

forests have such a great importance to the people as a

whole that it would be wholly unjust to make them a subject

of private ownership. The said resources being a gift of

nature, they should be made freely available to everyone

irrespective of the status in life. The doctrine enjoins upon

the Government to protect the resources for the enjoyment

of the general public rather than to permit their use for

private ownership or commercial purposes. According to

Professor Sax the Public Trust Doctrine imposes the following restrictions on governmental authority:

"Three types of restrictions on governmental authority are

often though to be imposed by the public trust: first, the

property subject to the trust must not only be used for a public

purpose, but it must be held available for use by the general

public; second, the property may not be sold, even for a fair

cash equivalent; and third property must be maintained in particular types of uses".

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34. Our legal system - based on English Common Law -

includes the public trust doctrine as part of its

jurisprudence. The State is the trustee of all natural

resources which are by nature meant for public use and

enjoyment. Public at large is the beneficiary of the sea- shore,

running waters, airs, forests and ecologically fragile lands.

The State as a trustee is under a legal duty to protect the

natural resources. These resources meant for public use cannot be converted into private ownership.”

(Ref: (1997) 1 SCC 3880 M. C. Mehta v. Kamal Nath)

01. The instant case manifests the actual implementation of the age old

adage that “charity begins at home”, not for the homeless, the landless, the labourer,

the beggar or those without any source of income, but practiced by the powerful, the

high and mighty, the rich who committed trespass on huge tracts of public land

(including forests), and have acquired proprietory rights over them, not because of

need, but out of sheer greed, completely unconcerned about the resultant damage to

the national and public interest.

02. It could perhaps be said that acquisition of property is a natural

aspiration of every human being but certainly not dishonest acquisition premised on

the criminal offence of trespass committed on State lands held in public trust by the

Government. In fact, the implementation of this adage, as is manifested in the

present case, tantamounts to implementation of a “loot to own” policy. That these

looters could motivate a legislation to facilitate their nefarious design, by itself

speaks about their insidious and deep penetration into the corridors of power and

authority; about the level and scale of their influence at all levels and suggests

involvement of all those who mattered including in propounding and

implementation of the policy.

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03. We have not come across any such legislative State action legitimizing

criminal activity at the cost of national and public interest with incalculable loss and

damage to the public exchequer and the environment, without any financial (or

other) impact assessment.

04. What is even more shocking is that despite a citizen of the erstwhile

State of Jammu and Kashmir raising this issue by virtue of public interest litigation

filed nine years ago in 2011 by way of the present PIL no.19/2011 and another in

the year 2014, their pleas for justice to the people of Jammu and Kashmir have

fallen completely on the deaf ears of the official respondents. The bureaucracy and

Government officials are enjoying huge salaries and benefits for their acts of

omission and commission each of which tantamounts to a penal offence and have

thus actively encouraged usurpations of public lands. Those in power , authority and

the respondents have completely failed to discharge their constitutional functions,

their statutory duties and public law obligations towards the public to whom they

owe their very existence.

05. In this writ petition filed in public interest nine years ago in 2011, the

present application was filed by the petitioner five and a half years ago as back as on

13th March 2014 submitting that a multi crore Roshni land scam unearthed by the

report of the Comptroller and Auditor General of India (CAG) for the ending year

31st March 2013, was required to be handed over to the CBI so that the matter could

be thoroughly investigated and appropriate prosecutions be effected under the

Jammu and Kashmir Prevention of Corruption Act and under Section 17 of the

Jammu and Kashmir State Land (Vesting of Ownership to the Occupants) Act

2001 to be undertaken.

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06. In order to understand the above prayer, it is necessary to consider the

unique legislative activity in the erstwhile State of Jammu & Kashmir.

07. On 9th of November, 2001, the Jammu and Kashmir State Land

(Vesting of Ownership to the Occupants) Act 2001 received the assent of the

Governor which was published in the Government Gazette on 13th

November, 2001.

The Statement of Objects and Reasons for the enactment shacks the conscience of

this Court and, therefore, is reproduced in extenso as under:

“Whereas most of the State land stands encroached upon and is

not presently being utilized for the purpose for which it was reserved at

the time of regular settlement. These lands have either come under

various types of construction or plantations including orchards. The

eviction of these lands is very difficult if not impossible because of the

procedure established under law whereunder an encroacher has to be

given an opportunity of being heard before he is evicted. Moreover, the

encroachers are entitled to file an appeal, review, revision and thereby

the State will be involved in protracted litigation and ultimately no

substantial achievement shall be made in removing the encroachments.

The removal of encroachment en-block will also lead to mass unrest.

In view of the above, the Hon‟ble Finance Minister proposed the

scheme called „Roshni‟ in his Budget Speech 2000 whereunder it was

suggested that the Proprietary Rights be given to the persons holding

unauthorisedly till 1990 on payment of the cost equivalent to the

prevailing market rate of the year 1990.”

(Emphasis supplied)

08. As a result of the above, the said enactment is referred to in common

parlance as the „Roshni Act‟. We shall also so refer to this enactment hereafter.

09. On the top of the Act, the respondents set out the following as the preamble:

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“An Act to provide for vesting of ownership rights to occupants of

State Land for purposes of generating funds to finance Power

Projects in the State.”

10. Clause (h) of Section 2 of the Act defines the State land in the following

terms:

“State land” means the land recorded as such in the Revenue Records

and includes any land which has escheated to the Government under the

provisions of any law for the time being in force in the State but does not

include any Government or State land mentioned in section 3 of this Act:

Provided that for purposes of Section 3-A of this Act, the State land shall

include Kahcharai and Forest land;”

11. By virtue of Section 4(1-A)(ii) thereof, an „Occupant‟ who is in possession of

State land at the commencement of the Act may be considered for conversion of the

occupancy of the state land into “freehold rights” in the prescribed manner. Section

8 captioned „Vesting of rights‟ contains a non obstacle clause and enables vesting of

all rights, title and interest in any State land in the occupant, subject to the

conditions laid down in the law.

12. Section 8 (1) (c) prescribes that the occupant „pays the price as is determined

in the prescribed manner for such land to the Government.‟ Section 8(3) reiterates

the requirement for deposit of the price as determined and notified.

13. That even though the enactment was passed in the year 2001, the legislature

had fixed the reserve price of the land in any specific area as per the rates prevailing

in the year 1990.

14. This enactment saw amendments in 2004 and 2007, each time progressively

to the benefit of the occupant. For instance, at the time of initial enactment, under

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Section 8(b) the total land which could be so vested was restricted to 10 kanals only.

By virtue of the amendment in 2004, this limit was increased to 100 kanals.

15. Section 5(B) of the Act passed in 2001 mandated that occupants seeking

transfer of ownership only if they had been in actual physical possession of the land

during the period 1990 to the commencement of the act in a particular area. The

original Act, 2001, even though it was perpetuating and recognizing illegalities,

limited the benefit thereunder to long term occupation. Unfortunately, an

amendment was effected on 27th

February, 2004, assented by the Governor on 19th

March, 2004 and came into force upon its publication in the Government Gazette,

which enabled all occupants who were in actual physical possession of the land in

2004 rendered eligible and again later it was relaxed to 2007. Each time the benefit

of the amendment was given to pending applications. So delays in processing

worked to the benefit of the occupants.

16. So far as vesting of agricultural lands in the occupants under the enactment

was concerned, under Section 8(A), a prohibition was placed on the change of usage

of land after its vesting. However, under sub-section (2) of Section 8A, any

occupant who was desirous of using agriculture land for any other purpose after its

vesting was enabled to do so with permission from the Committee or other

authority, on payment of the prescribed price.

17. It appears that the Revenue Department made J&K State Land (Vesting of

Ownership to the Occupants) Rules, 2007 in purported exercise of power under

Section 18 of the Roshni Act which came to be published in the Official Gazette as

SRO 64 dated 5th May, 2007. It seems that no approval of these Rules was sought

from the legislature and they were unauthorizedly published in Government Gazette.

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Again in a shocking illegality, these Rules were in excess of the powers conferred

by the Statute and in contradiction with the prohibitions contained therein.

18. This is done despite the mandate of the Constitution and the law laid down by

the Supreme Court. Government officials had the gumption and absolute arrogance

to publish rules which did not have the clearance of the legislature speaks volumes

about the influence of the beneficiaries thereof.

19. The price for vesting of land had to be determined by the Statutory

Committee in accordance with Section 12 of the Roshni Act. Under Section 12(2)

the factors to be considered for price fixation included potential value of the land,

irrigation and transport facilities available and proximity to road or urban areas as

well as the market value of the land determined for the purposes of the stamp duty

under the Stamp Act.

20. As against this statutory prescription, the rules provide for differential pricing

(dependent on size of plot, category of occupants, land end use) prescribing different

rebates over the land prices statutorily determined. This has enabled arbitrariness

and encouraged nepotism into the process.

21. Sub Section 4 of Section 12 refers to agriculture land. As against the statutory

prohibition, Rule 13(IV) prescribed that land which was under agricultural use,

would be vested in an occupant free of cost. However, a token amount of Rs. 100/

kanal shall be charged for maintaining proper revenue records.

22. The Roshni Act contains no provision for grant of any rebate, incentive or

penalty. As against this, Rule 14 was incorporated providing a schedule of time and

scale for providing incentive and penalty whereby rebates from 5% to 35% were

provided, again enabling discretion and arbitrariness.

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23. Under the Roshni Rules of 2007, agriculture lands could be transferred to

applicants who were in physical possession for three years on the date of

application. No period of occupation was prescribed in respect of the other lands.

24. It is trite that the Rules cannot be beyond statutory provisions. The Jammu

and Kashmir State Lands (Vesting of Ownership to the Occupants) Rules, 2007,

are clearly ultra vires the parent Act.

25. In 2018, the Jammu and Kashmir State Lands (Vesting of Ownership to the

Occupants) (Repeal and Savings) Act, 2018 (Government Act No.XXXII of 2019)

was assented to by the Government on 7th

day of December, 2018, however saving

actions done under the Roshni Act.

26. Thus by a legislative act, valuable state land held in public trust by the State

could be vested in persons who have trespassed thereon. Is this at all legally

permissible? Does the Constitution of India enable such a legislative exercise? So

far as State land is concerned, the mandate of the law laid down by the Supreme

Court is absolutely clear and the answer to the question is in the negative. We may

extract the observations of the Supreme Court in the case reported at (2011) 11 SCC

396 : Jagpal Singh and Ors., Vs. State of Punjab and others, wherein the Supreme

Court set aside the view of the Collector, Patiala, that it was not in public interest to

dispossess a person who had unauthorizedly encroached upon a pond situated at

Rohar Jagir, Tehsil and District Patiala. The Collector had directed that the cost of

the land as per Collector‟s rates be recovered from the respondents. It was observed

by the Court that the appellants were trespassers who illegally encroached on to the

Gram Panchayat land by using muscle power/ money power and in collusion with

the officials and even with the Gram Panchayat. It was stated that such blatant

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illegalities must not be condoned and even if appellants had built up houses on the

land, they must be ordered to remove their constructions and possession of the land

in question must be handed back to the Gram Panchayat. The letter of the

Government of Punjab permitting regularization of possession of the unauthorized

occupants was held to be not valid being illegal and without jurisdiction. The

Supreme Court had finally observed as follows:

“Before parting with this case we give directions to all the State

Governments in the country that they should prepare schemes for

eviction of illegal/unauthorized occupants of Gram Sabha/Gram

Panchayat/Poramboke/Shamlat land and these must be restored to the

Gram Sabha/Gram Panchayat for the common use of villagers of the

village. For this purpose the Chief Secretaries of all State

Governments/Union Territories in India are directed to do the needful,

taking the help of other senior officers of the Governments. The said

scheme should provide for the speedy eviction of such illegal occupant,

after giving him a show cause notice and a brief hearing. Long duration

of such illegal occupation or huge expenditure in making constructions

thereon or political connections must not be treated as a justification for

condoning this illegal act or for regularizing the illegal possession.

Regularization should only be permitted in exceptional cases e.g. where

lease has been granted under some Government notification to landless

labourers or members of Scheduled Castes/Scheduled Tribes, or where

there is already a school, dispensary or other public utility on the land.

Let a copy of this order be sent to all Chief Secretaries of all States and

Union Territories in India who will ensure strict and prompt compliance

of this order and submit compliance reports to this Court from time to

time.

Although we have dismissed this appeal, it shall be listed before this

Court from time to time (on dates fixed by us), so that we can monitor

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implementation of our directions herein. List again before us on

3.5.2011 on which date all Chief Secretaries in India will submit their

reports.”

Several authoritative and binding pronouncements have emphasized the

above.

27. It is well settled that public property is held in public trust by the State. In this

regard and the manner in which it has to be dealt with has been laid down by the

Supreme Court in a host of judgments which are extracted hereafter.

28. As back as in 1987 in the judgment reported at (1987) 2 SCC 295

Sachidanand Pandey v. State of W.B, the Supreme Court held thus:

“40. On a consideration of the relevant cases cited at the Bar the

following propositions may be taken as well established: State-owned or

public owned property is not to be dealt with at the absolute discretion

of the executive. Certain precepts and principles have to be observed.

Public interest is the paramount consideration. One of the methods of

securing the public interest, when it is considered necessary to dispose

of a property, is to sell the property by public auction or by inviting

tenders. Though that is the ordinary rule, it is not an invariable rule.

There may be situations where there are compelling reasons

necessitating departure from the rule but then the reasons for the

departure must be rational and should not be suggestive of

discrimination. Appearance of public justice is as important as doing

justice. Nothing should be done which gives an appearance of bias,

jobbery or nepotism.”

(Emphasis by us)

29. In the pronouncement reported at (2007) 8 SCC 75 Aggarwal & Modi

Enterprises (P) Ltd. v. NDMC, it was held as follows:

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“23. Disposal of public property partakes the character of trust and

there is distinct demarcated approach for disposal of public property in

contradiction to the disposal of private property i.e. it should be for

public purpose and in public interest. Invitation for participation in

public auction ensures transparency and it would be free from bias or

discrimination and beyond reproach.”

(Emphasis by us)

30. It is important to note the binding principle laid down in (2012) 3 SCC 1

Centre for Public Interest Litigation v. Union of India, when the court observed as

follows:

“89. In conclusion, we hold that the State is the legal owner of the

natural resources as a trustee of the people and although it is

empowered to distribute the same, the process of distribution must be

guided by the constitutional principles including the doctrine of

equality and larger public good.”

(Emphasis by us)

31. Recently in the judgment reported at (2018) 6 SCC 1 Lok Prahari v. State of

U.P, the Supreme Court observed as follows:

“27. In Natural Resources Allocation, In re, Special Reference No. 1 of

2012, (2012) 10 SCC 1, while considering the allocation of 2-G

Spectrum, this Court observed that as natural resources are public

goods, the “Doctrine of Equality” which emerges from the concepts of

justice and fairness must guide the State in determining the actual

mechanism for distribution of natural resources.”

(Emphasis by us)

32. We may usefully extract the principles laid down by the Division Bench of

the Delhi High Court in the pronouncement reported at (2005) 123 DLT 154

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Aggarwal & Modi Enterprises v. NDMC [which stands upheld by the Supreme

Court in (2007) 8 SCC 75], as follows:

“40. The principles which can be culled out from the aforesaid decisions

are the following:

(a) The demarcated approach for disposal of public property, in

contradiction to the disposal of private property is that it should be for

public purpose and in public interest.

(b) Disposal of public property partakes the character of a trust.

(c) Public purpose would be served only by getting best price for such

property so that larger revenue coming into the coffers of the State

administration can be utilized for beneficent activities to sub-serve

public purpose, namely, the welfare State.

(d) For getting the best price, the public property should be put to public

auction or by inviting tender with open participation i.e. ensure

maximum public participation and a reserve price. This also ensures

transparency and such an auction would be free from bias or

discrimination and thus beyond reproach.

(e) Private negotiations should always be avoided as it cannot withstand

public gaze and cast reflection on the Government or its official and is

also against social and public interest.

(f) In exceptional cases, the authorities may depart from public auction

or tender process and even dispose of the property at lower price than

the market price or even for a token price. However, resort to this

process can be taken only to achieve some defined constitutionally

recognized public purpose, one such being to achieve the goal set out

under Part-IV of the Constitution of India.”

(Emphasis supplied)

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33. We may also usefully extract the observations of the Delhi High Court in the

judgment reported at (2016) 234 DLT 409 Indian Hotels Co. Ltd. v. NDMC as

follows:

“50. The Council as a juristic entity would be the New Delhi Municipal

Council and having perpetual succession and common seal, this juristic

entity would have the power to acquire, hold and dispose of property.

The members referred to as the Council under Section 4 would not be the

juristic entity. They would be akin to the Board of Directors or the

Governing Council of a company/society. The Chairperson of the

Council is the one who performs the ministerial act of executing the

required document concerning the immoveable property belonging to the

Council: the juristic entity. But this would be subject to the sanction of

the Council i.e. the members referred to under Section 4. The

consideration would be the one which would be fetched at a fair

competition. Now, the expression „let-out on hire‟ which finds reference

in sub-Section (1) of Section 141 is missing in sub-Section (2), but that in

our opinion is irrelevant for the reason a statutory authority and

especially a Municipal Statutory Authority would be obliged on the

principle of a Trust to obtain the best price while creating any interest in

its property in favour of a third party. It is the inherent right of every

proprietor to secure maximum consideration for his property in all

transactions, apart from transactions where the law limits

consideration that can be charged by the proprietor, for any public

purpose or in public interest. In the case of governmental bodies like

the NDMC, the implicit right of a proprietor to maximize consideration

for its property is also a duty since these bodies own and transact

property in a fiduciary capacity for the general public. A similar view

has been expressed by the Supreme Court in the decision reported as

(2012) 3 SCC 1 Centre for Public Interest Litigation v. Union of India,

wherein the Supreme Court held that the doctrine of equality enjoins

that the public is adequately compensated for the transfer of natural

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resources and/or their products to the private domain. Thus, in

exercising its right/discharging its duty to secure maximum

consideration for grant of licence in relation to property bearing No. 1,

Man Singh Road, New Delhi, NDMC is within its power to ensure that

such measures are adopted by it which fetch the maximum revenue. As

a consequence of NDMC's proprietary right and fiduciary duty to secure

maximum consideration for public property, Section 141(2) of the

NDMC Act, 1994 must be interpreted to include within its ambit all

transactions involving immoveable property and the grant of licences

cannot be dehors Section 141(2) of the NDMC Act, 1994. A harmonious

construction of Section 141(1) and 141(2) of the NDMC Act, 1994

supports the view that it is incumbent on the NDMC to sell, lease, let out

or otherwise transfer any immoveable property at the value at which

such immovable property could be sold, leased, let out or otherwise be

transferred in normal and fair competition. The omission of the word „let

out‟ in Section 141(2) of the NDMC Act, 1994 is clearly on account of an

error in legislative drafting. Section 141(1) lists the modes and the

manner in which the immoveable property belonging to the NDMC may

be disposed off while Section 141(2) of the NDMC Act, 1994 provides the

necessary condition of securing adequate compensation, which

represents the fiduciary duty of the NDMC to the general public, to be

fulfilled while disposing off the property as per Section 141(1) of the

NDMC Act, 1994.”

(Emphasis supplied)

34. As back as in 1997, the judgment reported at (1997) 1 SCC 388 M. C. Mehta

v. Kamal Nath and others (extracted at the top of this judgment) the Supreme Court

had authoritatively laid down the law and held thus:

“34.Our legal system - based on English Common Law - includes the

public trust doctrine as part of its jurisprudence. The State is the trustee

of all natural resources which are by nature meant for public use and

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enjoyment. Public at large is the beneficiary of the sea- shore, running

waters, airs, forests and ecologically fragile lands. The State as a trustee

is under a legal duty to protect the natural resources. These resources

meant for public use cannot be converted into private ownership.”

35. The above discussion would show that the public property has to be dealt with

fairly and the distribution thereof has to be equally done for a public purpose

ensuring maximum consideration. Its treatment has to be non-arbitrary on clearly

defined principles as laid down in the authoritative and binding judgments above.

36. As back as in 1987 in Sachin Danand Pandey, the Supreme Court had held

that State owned property is not to be dealt with at the absolute discretion of the

Executive. Public interest was the paramount consideration. Nothing should be done

which could give appearance of bias, jobbery or nepotism. It has repeatedly been

held that State is the legal owner of the public property and holds natural resources

as a trustee. In the instant case while distributing public lands, the respondents were

bound by the constitutional principles of equality and larger public good which have

been completely bypassed by the provisions of the Roshni Act.

37. The Supreme Court has specifically held that the State as a trustee is under a

legal duty to protect the natural resources and these resources meant for public use

cannot be converted into private ownership (M. C. Mehta). It has also been held that

natural resources are public goods and doctrine of trust and fairness must guide the

State in distribution of such resources. An audit by the CAG has revealed that out of

the actual transfer of around 3,48,200 kanals of land under the Roshni Act, the

major portion of over 3,40,100 kanals has been transferred free of cost as

agricultural land.

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38. By the aforesaid legislation, the respondents have encouraged encroachment

of State and forest lands. The object of the enactment is completely illegal and

unacceptable. The enactment has been worked to facilitate illegal vesting of State

lands in the hands of powerful despite the mandate of the land regarding distribution

of largess by the State. Certainly the projected object of supporting hydel projects

out of the sale proceeds was only in order to give the semblance and propriety to the

object. It has served no such purpose. The law was enacted without any analysis or

the evaluation of the cost benefit or conducting any impact assessment and has been

worked in a malafide manner.

39. The Roshni Act and the Rules prescribe a mode of dispossession of valuable

public property in a most arbitrary manner not known by law. The Act and the Rules

are in the teeth of binding law laid down by the Supreme Court. They have been

worked most arbitrarily and unfairly is in complete violation of the mandate of

Article 14 of the Constitution of India. The vesting of several lakhs of kanals of

public land to private ownership has resulted in such land not being available for

public projects and infrastructure including hospitals, schools, parks etc. As a result,

the rights to health, education, a good environment of the residents of Jammu &

Kashmir, all of which are essential concomitants of their right to life guaranteed

under Article 21 of the Constitution of India of the residents are violated.

40. It appears that respondents considered themselves not bound by law and

conducted themselves in the present matter with utter impunity. The Jammu &

Kashmir Land (Vesting of Ownership to the Occupants) Act, 2001, is in complete

violation of the provisions of the Constitution and the binding principles laid down

by the Supreme Court of India and as such is ultra vires to the Constitution , void ab

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initio from its very inception. As such, the very enactment of the J&K State Land

(Vesting of Ownership to the Occupants) Act, 2001 as also its amendments and

J&K State Land (Vesting of Ownership to the Occupants) Rules, 2007 are

completely unconstitutional, illegal, unjustified and void ab initio.

Facts leading to this application

41. This application was filed by Mr. Ankur Sharma, Advocate in this petition as

an intervener. The apprehensions which have been expressed by the applicant in this

application are articulated in Para nos. 2, 4, 5 and 6 which are as follows:

2. That recently the Comptroller and Auditor General of India came out

with a Report ending March, 2013 which is also Report No.1 of the year

2014 and startling revelations were made by the Principal Accountant

General (Audit) J&K Mr. S.C. Pandey on March 8th

2014 in an

unprecedented Press Conference at Jammu wherein he while addressing

the media exposed a massive scam running into several thousands of

crores in the implementation of J&K State Lands (Vesting of Ownership

to the Occupants) Act, 2001 also known as Roshni Scheme. In the said

press conference Mr. S.C. Pandey lambasted the senior functionaries of

the State Government including those heading the Administrative

Department in the Civil Secretariat for their indifferent, non-cooperative

and hostile treatment to the Audit parties while conducting the test check

of Roshni cases in six Districts of the State. During the press conference

the Principal Accountant General, J&K also raised fingers over the

indifferent attitude adopted by the Chief Secretary of the State as the

Audit Organization had finally approached his office for compelling the

subordinate officers to provide the records sought for during Audit. A

copy of the press clipping of Daily Excelsior dated 9th March, 2014

evidencing the averment made hereinabove is enclosed herewith and

marked as ANNEXURE-„A‟. Prior to this a National Daily The Hindu, a

IA No. 48/2014 & CM Nos. 4036, 4065 of 2020 in

PIL No.19/2011

Page 19 of 64

reputed newspaper of the country also published a story in its issue

dated March 5th, 2014 under the caption 'CAG Report observes huge

irregularities in Roshni Scheme'. A copy of the said News item is

enclosed herewith as ANNEXURE-B

3. That the Hon'ble Court may very kindly appreciate that in the

aforementioned press conference Mr. S.C. Pandey at the very outset

stated that every possible attempt was made to cover up the biggest ever

land scam by denying vital information for the Audit and Rs.225 crore

loss to the Ex-chequer which came to the fore in the test checked cases

and according to- him this was just a tip of an ice berg.

4. That before proceeding further it is apt to point out here that State

land measuring 2046436 kanals (twenty lacs forty six thousand four

hundred and thirty six kanals) is under the illegal occupation of land

mafia in State of J&K including Government Officers/Legislators/Ex-

Legislators and Ministers and this Hon'ble Court on 04-09-2013

passed an order in the above titled Public Interest Litigation directing

Divisional Commissioners Jammu/Kashmir to divulge the complete

details of the illegal occupants who have encroached more than 20 lacs

Kanals of State Land and the said information has already been

supplied to this Hon'ble Court.

5. That in the Report No.1 of the year 2014 which is just a tip of the ice

berg and reflects the test check of few cases of violations with regard to

the State Lands situated in six Districts namely Anantnag, Jammu,

Udhampur, Pulwama, Srinagar and Budgam and the violations

include undue benefit of higher rebates, irregular transfer of lands to

Trusts etc, irregular mutation of lands, deficient system to check ceilings

on permitted land transfers, transfer of lands without reference to

authentic revenue records, irregular transfer of lands adjoining roads

and highways, transfer of lands to persons not in its actual physical

IA No. 48/2014 & CM Nos. 4036, 4065 of 2020 in

PIL No.19/2011

Page 20 of 64

possession, non-eviction of unauthorized occupants, non-reconciliation

of Departmental receipt with Treasury Accounts and transfer of

agricultural lands free of cost against the provisions of the Act. A copy

of the report No.1 of the year 2014 is enclosed herewith as

ANNEXURE-'C‟.

6. That before proceeding further it is relevant to reproduce the

operative part of the aforementioned report which is captioned as

Exclusion and the same reads as under:

"The principle objective of the Act was to raise resources for

investment in power sector and the Government had estimated

(November 2006) resource mobilization of about Rs.25448

crores by selling 2064972 kanals state land under unauthorized

occupation. However, it was observed that only Rs.76.24 crore

(24 percent) reportedly realized against a demand of Rs. 317.54

crore raised by the end of March, 2013 in the actual transfer of

348160 Kanals in the State. Thus, the principle objective of the

Act viz, raising of resources for investment in power sector was

not achieved though the state has lost sizeable lands. Of this,

the major portion (3,40,091 Kanals) has been categorized as

„agricultural' and hence transferred free of cost. Balance is

residential use: 6949 Kanals, commercial use: 990 kanals and

Institutional use: 130 kanals. In 547 cases covering revenue of

31.53 percent (Rs.100.12 crore out of Rs.317.54 crore) of the

total transfers approved in the state and 0.19 percent of land

i.e. 666 kanals out of 3,48,160 kanals of land, the statutory

committees had fixed the price at Rs.325.39 crore at an average

rate of Rs.48.86 lakh per kanal (before allowing rebates and

incentives). After allowing the discounts over the land price

fixed by the statutory committees, the applicants were asked to

pay only Rs.100.12 crore. Thus there was a loss of Rs.225.26

crore to the State Exchequer. Further, after transfer of

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Page 21 of 64

3,48,160 kanals under the Act, new encroachments are

continuing unabated as area of public lands under

encroachment was 20,46,436 kanals in March, 2013 as against

20,64,972 kanals in November, 2006.

The above points were reported to the Government (July,

2013); the government in its interim reply stated (September,

2013) that there was no deviation in the implementation of

Roshini Act and action would be taken against erring officials

if anything is found wrong. The reply of the Department does

not relate to audit findings. The Department confirmed that the

rules framed by the Government were not approved by the

Legislature, there being no statutory requirement to this effect.

Since the rules made have been published in Gazette, the

general public and the legislature in any case deemed informed

about its provisions. This per-se cannot justify the infirmities in

the Rules”.

Background facts

42. Before dealing with this application, few background facts are

necessary. A writ petition in public interest which was registered as PIL No. 19/201,

was filed by Prof. S. K. Bhalla on 17th August 2011, an academician and then a

Principal of the Government Degree College, Mendhar pointing out to allegations of

land grabbing leveled against influential people including police officers, politicians

and bureaucrats occupying responsible positions in the Erstwhile J&K State in

connivance with land mafia, making the prayer for constitution of an SIT and

seeking appropriate criminal, disciplinary and other actions against those guilty. The

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PIL No.19/2011

Page 22 of 64

writ petitioner referred to the following specific instances of land grabbing in Paras

18-20 of the writ petition:

“18. That the petitioner also wants to highlight a brazen case of land

grabbing of proprietary land of two brothers namely Tilak Raj and Hem

Raj sons of Karam Chand residents of Chak Lalu Shah Tehsil and

District Jammu whose land measuring 342 kanals-4 marlas comprised in

Khasra Nos. 1, 2,3, 3 min, 33, 34 and 36 has been encroached by none

else than the three daughters of Minister for PHE, Irrigation and Flood

Control J&K Government Sh. Taj Mohi-ud-Din. The Revenue record of

the above referred land fully demonstrates that the land is duly owned by

two brothers Tilak Raj and Hem Raj but at present the Khasra

Girdawari reflects the illegal occupation of Ms. Shabnam Taj, Nausheen

Taj and Arshi Taj daughters of Taj Mohi-Ud-Din the Minister for PHE,

Irrigation and Flood Control in the present dispensation.

Copies of the Revenue extracts / Khasra Girdawaries of the said

land showing ownership of Hem Raj and Tilak Raj and also „kabza

Najaiz‟ of three daughters of the above referred Minister are

collectively annexed herewith and marked as ANNEXURE-„T‟

respectively.

19. That since both the brothers are pitted against the daughters of

the sitting Minister and a Senior PCC Leader as such their efforts did

not materialize to get the VVIPs encroachers evicted from their duly

owned proprietary land referred hereinabove. The said three daughters

of the Minister have raised a big farm house over the said Land and the

adjoining land for leading a luxurious life and various reports of the

Revenue Agency could not deter them and rightly so in view of the clout

of their father who happens to be a Cabinet Minister. The petitioner

encloses herewith a copy of the report submitted by settlement Officer,

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PIL No.19/2011

Page 23 of 64

Jammu vide his No. SOJ/R/07/1521 dated 11-10-2007 which is self

explanatory and shows the plight of the owners and the strength of the

three daughters of a powerful Minister.

A copy of the said report dated 11-10-2007 is enclosed herewith

as ANNEXURE-„V‟.

20. That one fails to understand as to how the three daughters of a

Cabinet Minister have been recorded in the Revenue record as illegal

occupants by branding their possession as „kabza Najiaz‟ in respect of

the above referred land when the said land was not alienated by its

owners reportedly to the Minister‟s daughters. The Revenue Agency is

handicapped in view of the status enjoyed by the illegal occupants and

the intervention of this court is warranted to meet the ends of justice.

One of the brothers have already expired in the struggle and the other

one is also a senior citizen and striving hard to retrieve his land from

the influential daughters of the present PHE Minister.”

43. On 7th September 2011, notice was issued by this court to the

respondents No.1 to 5 in the matter.

44. On 4th September 2013 this Court had recorded the following order:

“Mr. Siddiqui, learned AAG has filed information with regard to

regularization of land under the „Roshni Act‟ in the court today, which

is in four volumes. The same is taken on record and a copy of each of

the volumes be furnished to the learned counsel for the petitioner during

the course of the day.

Mr. Ahmad, Learned counsel for the petitioner has however

brought to our notice that huge area of State land is in illegal

occupation of the land mafia which is comprised of bureaucrats,

legislators and others as per the allegations. Reliance in this regard has

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PIL No.19/2011

Page 24 of 64

been placed on a reply furnished to a starred question given in the

Assembly i.e., AQ No.618. According to the information Question

divulged, he illegal occupation of land and the area, district wise, has

been given in column „a‟ of Annexure (A) which is attached with the

CMA No. 555/2013 and same is as under:-

S. No. Question Reply

a)

District-wise, the

area of State Land

under illegal

occupation of land

mafia and other

encroachers in the

State

District-wise, the area of State Land under

the occupation of various individuals are

as under:

District State land under

occupation (in Kanals)

Anantnag 33710

Bandipora 46920

Baramulla 114135

Budgam 43742

Ganderbal 24544

Kulgam 29114

Kupwara 54034

Pulwama 40620

Shopian 13180

Srinagar 44294

Doda 177551

Jammu 160358

Kathua 104746

Kishtwar 75159

Poonch 129727

Rajouri 396018

Ramban 167521

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PIL No.19/2011

Page 25 of 64

Reasi 141524

Samba 97133

Udhampur 152416

The Annexure also divulges information with regard to the area of land

regularized under the „Roshni Act‟, and the district-wise detail is as under:

S. No. Question Reply

a) District-wise, the

area of Land

regularized under

“Roshni Act”

indicating the

revenue generated

on this account.

The details with regard to district-wise area

of land approved by the concerned price

fixation committee are as under:

District Total land approved by the

committees (in Kanals)

Anantnag 4324

Bandipora 11002

Baramulla 4200

Budgam 3321

Ganderbal 809

Kulgam 941

Kupwara 3139

Pulwama 3311

Shopian 1849

Srinagar 496

Doda 54212

Jammu 44915

Kathua 26292

Kishtwar 18185

Poonch 6597

Rajouri 283444

Ramban 24993

Reasi 13380

Samba 8585

Udhampur 90607

Mr. Ahmed, learned counsel for the petitioner has argued that

regularization of land under Roshni Act, has expired in the year 2007

and the information divulges in answer to the starred question is

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PIL No.19/2011

Page 26 of 64

somewhere in the year 2012-2013. However, vital part of the

information has been withheld by not divulging the names of those

who are in illegal occupation of this land as is evident from the answer

to para- D of the starred question which says that the exact information

regarding particulars of illegal occupants of State land in voluminous.

However, the district-wise details of State land is indicated in part “a”

i.e., first table of this order.

Mr. Ahmed has argued that citizens of the State are entitled to

know the identity and the names of illegal occupants of the

State land and would also be interested in their eviction so that public

exchequer is not deprived of the revenue as well as the valuable land

grabbed by those persons which as per allegations is almost 20 lac

kanals.

Accordingly, we direct that complete information divulging

names of those be disclosed to this Court so as to take a view for

further course of action. Needful shall be done within a period of four

weeks with a copy in advance to the learned counsel for the petitioner.

Copies of this order be furnished to the learned counsel for the parties.

List for further consideration on 30th of September 2013.”

(Emphasis supplied)

45. During the pendency of the writ petition, several status reports have been filed

by the respondents.

46. Mr. S. S. Ahmed has drawn our attention to several reports which are on

record of the case even by the Divisional Commissioner Jammu and Divisional

Commissioner Kashmir regarding the illegal encroachments of the State lands which

support the observations made by us.

47. Pursuant to the above order, the following reports have been filed

before us by the Divisional Commissioner Jammu and Divisional Commissioner

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PIL No.19/2011

Page 27 of 64

Kashmir which runs in several volumes in this Court the details whereof are as

follows:

48. Mr. S. S. Ahmed submits that the respondents had no jurisdiction in

law to close the cases which were required to be referred to DoPT. Mr. S. S. Ahmed

on earlier occasion had submitted that this was done in violation of the law laid

down by the Supreme Court in the judgment reported at (2012) 3 SCC 64,

Subramanian Swamy v. Manmohan Singh and Station House Officer

CBI/ACB/Banglore vs. B. A. Srinivasan and another, Criminal Appeal No.1837 of

2019 @ SLP (crl.) No.6106 of 2019, decided on 5th

December 2019.

S.No. District Letter No. Dated

01. District Ramban 829-3/SQ 29-11-2013

02. Deputy Commissioner Doda 980-81/SQ 25-10-2013

03. Deputy Commissioner Poonch

DCP/SQ/974-75 26-10-2013

04. Deputy Commissioner Kathua

DCK/SQ/2013-14 1007-

09

28-10-2013

05. Deputy Commissioner Kishtwar

DCK/SQ723/013 23-10-2013

06. Deputy Commissioner Udhampur

ACR14/38/1903-05 30-1-2013

07. Deputy Commissioner Reasi

DC/RSI/13/14/1251-

54/SQ

01-11-2013

08. Deputy Commissioner Samba

DCS/SQ/13-14/801 04-11-2013

09. Deputy Commissioner Samba

DCS/SQ/13-14/803

10. Deputy Commissioner Rajouri

SQ/856 09-11-2013

11. District Baramulla Tehsil Pattan

Nil

12. Tehsil Akhnoor OQ/7529753 22-11-2013

13. Niabat Arnia Tehsil Bishnah TB/OQ/2013-14-570 22-11-2013

14. Tehsil R.S. Pura Nil Nil

15. Tehsildar Jammu 2294/OQ 23-11-2013

16. Tehsildar Settlement Jammu Nil nil

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Page 28 of 64

49. Mr. S. S. Ahmed submits that the respondents had no jurisdiction in

law to close the cases which were required to be referred to DoPT. Mr. S. S. Ahmed

on earlier occasion had submitted that this was done in violation of the law laid

down by the Supreme Court in the judgment reported at (2012) 3 SCC 64,

Subramanian Swamy v. Manmohan Singh and Station House Officer

CBI/ACB/Banglore vs. B. A. Srinivasan and another, Criminal Appeal No.1837 of

2019 @ SLP (crl.) No.6106 of 2019, decided on 5th

December 2019.

50. On the 13th March 2014, Mr. Ankur Sharma, a resident of Kathua, and

then a law student, apart from filing of the present application also filed PIL No.

41/2014 titled Ankur Sharma vs. State of J&K and ors. seeking the following

prayers:

“i) Declaring the Jammu and Kashmir State Lands (Vesting of

Ownership to the Occupants) Act, 2001 and the rules framed

thereunder i.e. The J&K State lands (Vesting of Ownership to the

Occupants) Rules, 2007 as unconstitutional/illegal being ultra-vires the

Constitution of State of Jammu and Kashmir.

ii) Commanding the respondents to disclose before this Court the

names of the illegal occupants/beneficiaries who have been conferred

the benefit of the aforementioned Act which is illegal/unconstitutional

and all such orders of regularizations and consequential mutations

attested under the impugned Act be declared void ab-

initio/nonest/illegal and the State land so regularized be retrieved from

the said illegal occupants/beneficiaries.

iii) Commanding the respondents to retrieve the State Land

measuring twenty lacs forty six thousand four hundred and thirty six

(2046436) kanals which is under the illegal occupation of the land

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PIL No.19/2011

Page 29 of 64

mafia and the said encroachment is evident from the reply of the

Revenue Department to a Starred A.Q No. 618 tabled by Mr. Yash Paul

Kundal (MLA) in the J&K State Legislative Assembly.

iv) Commanding the respondents not to issue any further

SRO/Notification for extending the date for inviting fresh claims under

the impugned Act for conferring ownership rights to the illegal

occupants with regard to the left over state land i.e. Land measuring

twenty lacs forty six thousand four hundred and thirty six (2046436)

kanals.

(v) Commanding the respondents not to process any further case for

conferment of ownership rights under the impugned Act/Rules.

vi) Commanding the respondents to file an Action Taken Report

(ATR) with regard to the implementation of Section 8(50 (6) and

Section 9 of the Jammu and Kashmir State Lands (Vesting of

Ownership) to the Occupants) Act, 2001.

xxxxxx”

51. On 4th March 2020, we directed the listing of PIL No.19/2011 with PIL

No.41/2014.

52. In the writ petition, several serious matters including unauthorized

occupation of large chunk of land by encroachers have been noticed in several

orders.

53. We note three major instances of complete illegalities pointed out on

court record:

A) Encroachment in (784 kanals, 17 marla of land in Khasra No. 746)

Village Gole, Tehsil Jammu of land transferred to JDA

54. CM No. 846/2013 was filed by the petitioner Prof. S.K. Bhalla wherein

it is pointed out that 784 kanals 17 marlas of land covered by Khasra No.746

situated at Village Gole, Tehsil Jammu has been encroached upon.

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PIL No.19/2011

Page 30 of 64

55. The order dated 18th March 2014 specifically recorded that Khasra

No.746 comprised of 2235 kanals, out of which 333 kanals 13 marlas stood

transferred from Nazool Department to the Jammu Development Authority.

56. On this application, on 24th April 2014, a direction was made to the

Deputy Commissioners of District Jammu, Samba, Udhampur, Srinagar, Budgam

and Pulwama to submit the compliance report with regard to handing over the

relevant record of the present case to the Director Vigilance who was enquiring

into the matter.

57. On 30th May 2014, the court directed the Deputy Commissioners of the

six districts again to ensure that the record is handed over.

58. On 10th June 2014, it was noted that only Deputy Commissioners of

District Jammu and Samba had furnished the record whereas Deputy

Commissioners of Udhampur, Srinagar, Budgam and Pulwama had not handed over

the record to the Vigilance.

59. The position remained same on 14th July 2014, 5th August 2014 and

27th August 2014.

60. The matter of handing over the records for the report of the Vigilance

has not engaged any attention thereafter.

61. In addition thereto, the records of the case shows that on 13th May

2014, it was observed by this court that in compliance of the order dated 19th

February 2014, the Deputy Commissioner, Kathua, had submitted a report. The

Deputy Commissioner was directed to indicate as to why the action in accordance

with law was not taken against all those persons who had encroached upon State

land/common land/Kachharai land.

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PIL No.19/2011

Page 31 of 64

The needful in this regard has also not been done till date.

62. As back as on 1st September 2014, this court had noted the reluctance

on the part of the concerned authorities to take action against persons who had

encroached upon the State land.

63. The above court proceedings establish the reluctance of these senior

officers and all authorities – revenues, Jammu Development Authority etc. to

assist the inquiry, which reluctance in fact tantamounts to obstruction and

hurdles created by these authorities to prevent disclosure of the truth, protect law

breakers and facilitate misappropriation of public properties of which they were

guardians. Such acts and omissions of these officials tantamount to complicity in

the illegal acts and criminal offences. These officers in the State have flouted

court orders with impunity.

B) 154 Kanals of land belonging to the Jammu Development Authority

(JDA) permitted to be encroached, constructed upon and converted

to commercial use

64. Let us note a second startling instance where despite revenue records

(the Girdawari) recording JDA as owner of the land, it stands transferred to

private persons under the Roshni Act.

65. On 11th August 2020, by way of CM No.1972/2020, the petitioner had

pointed that 154 kanals of land belonging to the Jammu Development Authority

(JDA) has been regularized in favour of the encroachers under the shield of Roshni

Act (repealed in 2018).

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PIL No.19/2011

Page 32 of 64

66. We may usefully extract the averments made by the applicant which

reads as follows:

“6. That the Government of Jammu and Kashmir vide SRO No.263

dated 09-08-2004 ordered the transfer of vacant State Land falling

under the jurisdiction of JDA & SDA to Jammu/ Srinagar

Development Authorities with immediate effect and State Land

measuring 154 Kanals and 05 Marlas bearing Survey No.781 was one

of such chunks of land transferred to JDA vide SRO supra being

situated within Municipal Limits of Municipal Corporation Jammu and

as such was outside the provisions of J&K State Lands (Vesting of

Ownership to Occupants) Act, 2001 as Section 3(b) of the said Act

clearly provided that provisions of the Act shall not apply to such State

Lands as is held by any Government Department or Institutions under

the control of the Government. A copy of the said SRO 263 dated 09-08-

2004 is enclosed herewith and marked as ANNEXURE-II.

7. That before proceeding further, it is relevant to place on record a copy

of the Khasra Girdawari of Village Deeli for the year Kharief 2004

wherein the entry of JDA with regard to aforementioned State land

measuring 154 Kanals 05 Marias comprised in Survey No.781 was

recorded, copy whereof is enclosed herewith and marked as

ANNEXURE-III.

8. That with a view to grab a portion of the aforementioned JDA land,

the said Sh. Bansi Lai Gupta on 20-12-2006 made an application to the

Tehsildar (Settlement), Jammu on the prescribed format for

conferment of ownership rights of land measuring 05 Kanals 02

Marias situated in Village Deeli, Tehsil and District Jammu without

enclosing the mandatory documents as mentioned in Section 5(2) of

J&K State Lands (Vesting of Ownership to Occupants) Act, 2001. A

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copy of the said application dated 20-12-2006 is enclosed herewith and

marked as ANNEXURE-IV. In the said application Sh. Bansi Lai Gupta

claimed his possession over the land in question since 1997. It is apt to

point out here that Sh. Bansi Lai Gupta in his affidavit dated 21-12-2006

duly attested by Notary Jammu City in para 2 admitted that he is in

possession of 05 Kanals 02 Marias of State land in Khasra No.781 and

applied for commercial purposes and in para 3 of the said affidavit, Sh.

Bansi Lai Gupta admitted that entry on his name has been entered in

Khasra Girdawari whereas in point No. 10 of his application for

conferment of ownership rights dated 20-12- 2006, Sh. Bansi Lai Gupta

regarding the extract of Girdawari alongwith Shajra of such land clearly

mentions, "covered with plinth and four wall".

A copy of the affidavit of Sh. Bansi Lai Gupta dated 21-12-2006

evidencing the averments made hereinabove is enclosed herewith as

ANNEXURE-V.

X x x x

13. That from the aforementioned field reports and revenue record it is

crystal clear that the land in question had been recorded in the name of

JDA in Kharief 2004 and all the field reports made by Patwari Halqa,

Naib-Tehsildar, Digiana and Tehsildar (Settlement) Jammu

unequivocally confirmed and asserted that there is no Girdawari entry

in the revenue records in the name of Sh. Bansi Lai Gupta, however he

had covered the land with plinth and four wall. Since the land was duly

recorded JDA land in the revenue record and in view of bar contained

in Section 3(b), the case in hand for conferment of ownership rights

should have been rejected at the threshold on this score only by the

then District Collector, Jammu i.e. respondent No. 17 and further there

was an additional ground to reject the application for conferment of

ownership rights under Section 5(2) of J&K State Lands (Vesting of

Ownership to Occupants) Act, 2001 as the application was not

accompanied with extract of Girdawari and Tatma Shajra, however

despite the categoric reports of field revenue agency, the case of Sh.

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Page 34 of 64

Bansi Lai Gupta was processed in undue haste for the obvious reasons

and the mandatory provisions of Section 3(b) and Section 5(2) of the

J8&K State Lands (Vesting of Ownership to Occupants) Act, 2001 were

given a go-bye to confer undue benefit to highly influential Sh. Bansi Lai

Gupta. Here it is respectfully submitted that in their field reports the

Patwari/Girdawar, Naib-Tehsildar and Tehsildar should have

categorically stated about the nature of the land and its transfer to JDA

way back in the year 2004 and should have also enclosed the extracts of

girdawari showing entry of JDA with a recommendation not to process

the case for conferment of ownership rights in view of specific bar

contained in Section 3(b) and Section 5(2) of J&K State Lands (Vesting

of Ownership to Occupants) Act, 2001.”

(Emphasis supplied)

67. Despite repeated opportunities, the JDA did not file any reply to this

application. On 27th August 2020, this court was compelled to give last opportunity

to do so.

68. In a dishonest effort to cover up its illegalities, The JDA has filed a

reply dated 28th August 2020 (Page-1782 of the record) wherein the preliminary

submissions, a shocking state of affairs is stated:

“ Preliminary Submission: i) xxx

a) That the land measuring 154 Kanals 05 marlas bearing Khasra No.

781 situated at Deeli has been transferred in favour of answering

respondent‟s authority ( Jammu Development Authority) in the year 2004

vide SRO No.263 dated 09.08.2004 under the provisions of J&K State Lands

(Vesting of Ownership to Occupants) Act, 2001.

b) That it is apt to mention over here that the total land of Khasra No. 781

Deeli is 198 kanals 15 marlas and out of this land the land measuring 154

kanals 05 marlas only stood transferred in favour of JDA as mentioned

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PIL No.19/2011

Page 35 of 64

above. The rest of the land in this Khasra No. has not been transferred in

favour of JDA vide aforementioned SRO under the provision of J&K State

Lands (Vesting of Ownership to Occupants) Act, 2001.

ii) That apart, the demarcation as well as revenue papers of the

aforementioned land viz. 154 kanals 05 marlas transferred in favour of JDA

has not been carried out as yet. …..”

(Emphasis by us)

Clearly the attempt is to protect the encroachers on the J.D.A. land by

casting a cloud over the description and location of land transferred to the JDA.

69. So far as the official respondents are concerned, the Divisional

Commissioner Jammu has filed the status report on 26th August 2020 stating that in

order to resolve the matter, the Deputy Commissioner Jammu vide order dated 25th

August 2020 has now constituted a Committee with the Additional DC (L/O),

Jammu as a Chairperson and the Director Land Management, JDA; Tehsildar, JDA;

and Tehsildar Jammu South as its members for demarcation of the JDA land falling

under Khasra No.781 and identification of the encroachers of the JDA land in this

Khasra.

70. The Communication dated 01-06-2011 addressed by the VC, JDA to

the DC, Jammu and an order dated 04-12-2019 of the Special Judge (Anti

Corruption) Jammu amply state the correct position.

71. We have strong apprehension that the JDA and the Revenue authorities

have now commenced a huge cover up exercise now.

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C) Fate of land measuring 66436 kanals transferred by the Government

to the Jammu Development Authority-refusal by the JDA to comply

with court orders for demarcation

72. A third instance has engaged the attention of this court. On 12th

November 2014, it was noted by the court that the total land transferred by the

Government to the Jammu Development Authority under various orders was 86941

kanals, out of which only 19391 kanals and 11 marlas have been demarcated. The

remaining land measuring 66436 kanals and 01 marla remained un-demarcated.

It was observed that the Revenue Department had entered into “superficial

correspondence with the JDA” with regard to transfer of the land and its

demarcation.

73. On 12th November 2014 itself, directions were issued to the Revenue

Department as well as JDA to file a status report with regard to the demarcation of

this balance land.

This direction has not been complied with till date despite passage of

six years. Having seen the record of this case, we are compelled to state that the

non-compliance was for obvious reasons. It reflects the depth of involvement of the

official machinery with the encroachers

74. On 10th December 2014, this was recorded by the court:

“2. In the status report filed by the Deputy Commissioner, Jammu, it

has been admitted that more than 40 years have been lapsed after

passing of Government Order No, 46 of 1973 and 10 years have been

lapsed after passing of Roshni Order, but no report is forthcoming to

show that any detailed survey was conducted either by the Revenue

Department or by the JDA. In the revenue record, the name of JDA has

been entered in Girdawari Register without following due procedure

resulting in lot of confusion. Accordingly, a detailed order covering the

aforesaid issues has been passed and committees have been constituted

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PIL No.19/2011

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for demarcation of land and to dispose of all the cases in time bound

manner. A copy of order dated 01.12.2014 has been placed on record as

annexureR-1.”

(Emphasis supplied)

Even on that date, the court had observed that the demarcation process

was in the offing.

75. The court had also passed the following directions on that date:

“9. Needless to observe that this Court being the Custodia Legis,

directs that no petition or other litigation shall be entertained by any

other forum and the same should be listed before the First Division

Bench.”

(Emphasis by us)

76. On 10th December 2014, the court had directed video graphing of the

demarcation process.

77. The matter of demarcation of the JDA land was again taken up by the

court on 11th

April 2017 clearing noticing the lack of any will on the part of the JDA

or the revenue authorities to comply with the directions made by the court or to

secure the public land.

78. In this regard, on the 19th July 2017, the Vice Chairman of the JDA

and Inspector General of Police, Jammu were directed to file compliance failing

which they were to remain present in court. It would appear that even this

direction did not move the respondents.

79. On 4th August 2017, specific directions were made for demarcation to

the JDA which are as follows:

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PIL No.19/2011

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“1. That the Vice Chairman, Jammu Development Authority shall

apprise the Deputy Commissioner, Jammu and Deputy Commissioner,

Samba about the requirement of manpower as well as shall furnish the

particulars of the revenue record of the villages/locations which are

needed by it. On receipt of the aforesaid communication, the revenue

records as sought for by the Vice Chairman, Jammu Development

Authority shall be supplied by the revenue department within a period

of two weeks from the date of receipt of such communication.

2. On receipt of the revenue records, the JDA shall ensure that the

land which is demarcated and is free from encroachment is fenced

against so as to prevent it from encroachment in future.

3. The Inspector General of Police (IGP), Jammu shall provide

police protection to the officers of the Jammu Development Authority

who are carrying out the demarcation work in pursuance of the order

passed by this Court.

Needless to state that the officers of the JDA and officers of the revenue

department shall work in coordination with each order and try to

accomplish the work of demarcation within a time limit fixed by this

Court.

4. After four weeks, the Vice Chairman, Jammu Development

Authority, shall file an updated status report.”

More than three years have passed since the passing of this order.

Nothing has been done by JDA in this matter. This clearly manifests the attempt

to assist encroachment and illegal occupation of this land.

80. On 13th September 2017, a ruse was put up by the Jammu

Development Authority complaining of failure of the revenue department to provide

officials and police department to provide police protection. The direction to video

graph the demarcation process by the JDA to identify the obstructers was

reiterated on 13th September 2017.

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PIL No.19/2011

Page 39 of 64

81. On 8th December 2017, this court had directed the appearance of,

amongst others Vice Chairman, Jammu Development Authority; DCs Jammu,

Samba; SSPs Jammu, Samba. The matter was directed to be listed on 26th

December 2017.

82. Further directions were made on 30th January 2018.

These authorities have remained unmoved. The matter of

demarcation and securing the lands has not moved a step.

Criminal culpability

83. On 17th December 2014, the court had noted the Status Report filed by

the Vigilance authorities disclosing registration of 6 FIRs i.e. FIR Nos.15/2014,

16/2014, 17/2014, 18/2014, 19/2014 and 20/2014 registered by Police Station VOJ

which were pending for launching of prosecution with the Vigilance Commission

under Rule 24(1) of the Jammu and Kashmir State Vigilance Commission Rules

2013 regarding which report had been sent to Chief Vigilance Commissioner in

accordance with Vigilance Commission Rules.

84. Mr. S. S. Ahmed, counsel for the petitioner had pointed FIRs had been

registered only in 6 cases. Further status report was called for.

85. The matter remained pending on the several dates thereafter.

86. Mr. S. S. Ahmed had drawn our attention to the Report dated 01st April

2019 (Page-985) filed by the Anti Corruption Bureau (earlier Vigilance

Organization) which refers to 17 cases only in which 7 FIRs had been registered by

the Police Station Vigilance Organization Jammu (now Anti Corruption Bureau,

Jammu) and 10 FIRs registered by the Vigilance Organization Srinagar (now Anti

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Corruption Bureau, Srinagar). When compared against the extent of the illegal

occupation and encroachment of State land, that only 17 cases were examined and

merely 7 and 10 FIRs registered in Jammu and Srinagar respectively by the

Vigilance Organisation shows the complicity in the misappropriation of State

property, of those enjoined to bring the culprits to book and also of those required to

protect State land and to effect facilitate recovery of public property.

87. The petitioner pointed out that FIR No. 06/2014 was registered by the

Vigilance Organization in respect of vesting of the land in favour of Sh. Bansi Lal

Gupta and the investigation implicated the several high level officers. According to

the petitioner, the sanction for prosecution was not only declined, but, on 4th

July

2019, the Anti Corruption Bureau filed a closure report in the Court of learned

Special Judge (Anti Corruption) Jammu.

88. The petitioner has made the following averments in CM No. 1972/2020

with regard to this closure report:

“21. That in the aforementioned final report the Anti-Corruption

Bureau itself admitted that there was, 'Police-Bureaucratic Political-

Business-Media nexus' for adopting the attitude of "Shut-Eye" by

Revenue Department in respect of Khasra No.781. The ACB further

stated, "a piece of state land where two police pickets had been

constructed (which fact was acknowledged by the then DC Jammu and

referred to by the then SSP Jammu in his communication) has now

been converted into Jammu Plaza and JK Resort (illegal banquet halls)

while as residential houses of bigwigs have been found constructed

(such as Sh. Raman Bhalla, Sh. Subash Choudhary (benami), Sh. Om

Parkash, Ex-MLA, Sh. Choudhary, retired SP, Sh. Mirza Dy.SP,

Mohan Meakin, Anchor Firm and so on.

x x x

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PIL No.19/2011

Page 41 of 64

23. That in the closure report, the ACB virtually exhibited its

helplessness to proceed against the 'Big Sharks' and despite unearthing

the crime, preferred to adopt a silence as the accused involved were

highly influential and enjoying clout in the corridors of power.

24. That before proceeding further, it is relevant to place on record a

copy of communication No.JDA/DLM/HQA/181-89 dated 01-06-2011

wherein the then VC JDA wrote a communication to the then Deputy

Commissioner, Jammu wherein the VC JDA categorically mentioned that

land under Khasra No.781 measuring 154 Kanals 05 Marlas in Village

Deeli, Jammu stands transferred to JDA since 2004 vide SRO 263 dated

09-08-2004 and entries of JDA have been recorded in the Khasra

Girdawari Register indicating the JDA land. It was further pointed out in

the said communication, that inspite of this, some non-occupants, vested

interests are processing the files under the Roshini Act for regularization

of JDA land and the VC JDA finally requested the Deputy Commissioner,

Jammu that no case be considered in the above mentioned Khasra

Number and if any regularization case of an individual is in process, the

same may be cancelled/withdrawn. A copy of this communication was

also forwarded to the Divisional Commissioner, Jammu. A copy of the

said communication dated 01-06-2011 is enclosed herewith as

ANNEXURE-XV.

x x x x

26. That it was on 04-12-2019 the Learned Special Judge (Anti

Corruption), Jammu in a significant order rejected the closure report

and the operative part of the said order reads as under: -

"For what has been observed hereinabove, this final report is

ordered to be returned to the SSP, ACB Jammu with directions

to further investigate in light of the observations made herein

above and also to widen the scope of investigation for including

within its ambit all encroachments by anybody and everybody

whosoever unfazed by their status or position. The role of the

officers/officials of the JDA be also looked into for their

IA No. 48/2014 & CM Nos. 4036, 4065 of 2020 in

PIL No.19/2011

Page 42 of 64

deliberate acts of omissions and commissions to take charge of

the land immediately after it was ordered to be transferred to

JDA by the government and taking further steps to protect and

preserve the same from the on-slot of encroachers and land

sharks and also to recommend appropriate action against those

who have already raised constructions of residential and

commercial nature over the land encroached for

reclaiming/recovering the costs thereof by imposing exemplary

penalties. Given the delay that has already occurred, it is

expected that the process is completed at the earliest without

further loss of time so that the whole exercise does not become

a casualty during the process itself.

A copy of the said order dated 04-12-2019 is enclosed herewith

and marked as ANNEXURE-XVII.

27. That while returning the closure report the Special Judge (Anti

Corruption) Jammu in paras 19 and 20 of the order categorically

observed that it was very well known to the officers/officials that no

entry of being in occupation of land in question existed in the revenue

records favouring the beneficiary which was a pre-condition for

entertaining the claim for regularization. No Aks Tatima of the land in

question was prepared which was another basic requirement and the

possession on spot was to be verified there-from only. The Deputy

Commissioner not only accepted the reports but also noted

unequivocally that tatima-shajra was attached to the application and

the price-determination committee headed by the Divisional

Commissioner ignored all these illegalities and went on to determine the

price straightway in an arbitrary manner without assigning any reason

as to how they had arrived at and found the rate of the land in question

to be just and reasonable and the Learned Special Judge (Anti

Corruption) Jammu further made the following observations in para 20

of the order dated 04-12-2019: -

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“20. It is thus, clear from the above noted acts of omissions and

commissions of these officers/officials that all of them acted in

unison for bestowing the land in question to the beneficiary as

largesse. These state of affairs, clearly demonstrate that abuse

of the official positions by these officers/officials for favouring

the beneficiary is writ at large. It is baffling to notice that such

being the factual position how a clean chit was given to the

then Divisional Commissioner Mr. Sudhanshu Pandey and

Assistant Commissioner Mr. Rajinder Singh by the erstwhile

Vigilance Organization (now ACB). It is equally disturbing that

sanction for the prosecution of two more i.e. Hardesh Kumar

Singh, the then Deputy Commissioner and Anwar Sadotra, the

then Patwari was denied in an open bid to save them that too by

the authority which was not competent to do so on flimsy

grounds as if all these officers/officials were kids having no

understanding of what was natural fallout of their actions.

Therefore, this final report for closure of the case cannot be

accepted being against the facts and circumstances established

during the course of the investigation."

(Emphasis supplied)

89. By our order dated 18th March 2020 we had called upon the official

respondents to inform this Court about the cases which were registered by the ACB

and the action taken thereon.

90. On 28th July 2020 a Status Report (page 1105 to 1165) has been filed

by Mr. Raman Sharma, Additional AG on behalf of Anti Corruption Bureau

giving the following status:-

i) Total number of FIRs registered by it - 17

ii) Cases in which charge sheet filed - 2

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PIL No.19/2011

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(FIR NO. 34/2014 and 30/2015)

iii) Cases closed - 2

iv) Cases pending for receipt of sanction for prosecution- 3

v) Investigation stayed by court - 1

91. Mr. Raman Sharma, AAG has pointed out that the investigation into

FIR No.16/2014 could not proceed because of an order of stay dated 18th February

2016 passed by the learned Single Judge of this court in the case 561-A Cr.PC

No.76/2016, Ashok Kumar v. State of J&K.

92. We had observed that these cases related to 2014 and 201